Case 2:17-cv-02666-JCM-GWF Document 27 Filed 11/13/17 Page 1 of 14

1 Marc E. Elias (D.C. Bar No. 442007) (pro hac vice)

Jacki L. Anderson (Ill. Bar No. 6312556) (pro hac vice)
2 PERKINS COIE LLP
700 Thirteenth St. NW, Suite 600
3 Washington, D.C. 20005-3960
Ph: 202.654.6200
4 Fx: 202.654.6211
MElias@perkinscoie.com
5 JackiAnderson@perkinscoie.com

6 Sambo Dul (AZ Bar No. 030313)(pro hac vice)

PERKINS COIE LLP
7 2901 N. Central Ave., Suite 2000
Phoenix, AZ 85012
8 Ph: 602.351.8000
Fx: 602.648.7000
9 SDul@perkinscoie.com

10 Bradley Schrager (NV Bar No. 10217)

Daniel Bravo (NV Bar No. 13078)
11 WOLF, RIFKIN, SHAPIRO,
SCHULMAN & RABKIN, LLP
12 3556 E. Russell Road, Second Floor
Las Vegas, NV 89120
13 Ph: 702.341.5200
Fx: 702.341.5300
14 Bschrager@wrslawyers.com
Dbravo@wrslawyers.com
15
Attorneys for Plaintiffs Nora Luna, Bilal
16 Shabazz, Diane Crump-Richmond, Susan
Florian, and Demi Falcon
17

18 UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA
19

20 NORA LUNA, BILAL SHABAZZ, DIANE Case No. 2:17-cv-02666-JCM-GWF

CRUMP-RICHMOND, SUSAN FLORIAN,
21 and DEMI FALCON, PLAINTIFFS OPPOSITION TO MOTION
TO INTERVENE AS DEFENDANT BY
22 Plaintiffs, PUBLIC INTEREST LEGAL
FOUNDATION
23 vs.

24 BARBARA CEGAVSKE, in her official

capacity as the Nevada Secretary of State; and
25 JOSEPH GLORIA, in his official capacity as
the Clark County Registrar of Voters,
26
Defendants.
27

28

Plaintiffs Opposition to PILF Motion to Intervene

 Case 2:17-cv-02666-JCM-GWF Document 27 Filed 11/13/17 Page 2 of 14

1 Plaintiffs Nora Luna, Bilal Shabazz, Diane Crump-Richmond, Susan Florian, and Demi

2 Falcon (Plaintiffs), by and through their undersigned counsel of record, hereby oppose the

3 October 30, 2017, Motion to Intervene as Defendant By Public Interest Legal Foundation (ECF

4 No. 12) (Motion to Intervene).

5 MEMORANDUM OF POINTS AND AUTHORITIES

6 I. INTRODUCTION
7 The Public Interest Legal Foundations (PILF) Motion to Intervene should be denied.

8 First, PILF is not entitled to intervention as of right under Federal Rule of Civil Procedure 24(a)(2)

9 because it fails to establish that it has a significant and protectable interest in the pending

10 litigation. Instead, PILF makes vague and unsubstantiated allegations that its broad charitable

11 mission to, among other things, defend the constitutional regularity of elections will be directly

12 and adversely impacted by this case. (Motion to Intervene at 5). However, PILFs general interest

13 in election-related issues is, at best, only tenuously related to the pending action. PILF has alleged

14 no specific involvement or interest in Nevadas recall election provisions and procedures. Nor has

15 it identified any members of its organization with a protectable interest, in Nevada or anywhere,

16 on whose behalf it seeks to intervene. Indeed, accepting PILFs unsubstantiated assertion that it

17 has a protectable interest in this litigation would lead to an absurd result: there would be no

18 lawsuit, anywhere in the country, relating in any way to elections, in which PILF would not have
19 a sufficiently significant and protectable interest entitling it to intervention as of right.

20 Further, PILF is not entitled to intervention as of right because it has failed to establish that

21 existing parties will not adequately represent its interests. PILF has not established that its interests

22 are sufficiently different from the existing Defendants in defending the challenged recall laws.

23 Because PILFs objectives are the same as the current Defendants, any alleged differences in

24 litigation strategy cannot serve as a basis for intervention. Further, it is well-established that,

25 absent a very compelling showing to the contrary, the Nevada Attorney General is fully capable of

26 adequately representing the current Defendants in their defense of Nevadas laws, including with
27 respect to the specific constitutional and federal statutory challenges brought by Plaintiffs. PILF

28 has failed to make any compelling showing that its general interest in upholding state election
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Plaintiffs Opposition to PILF Motion to Intervene
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1 laws cannot be adequately represented by the Nevada Attorney General.

2 Finally, PILF is not entitled to permissive intervention, which is rarely granted when the

3 requirements for intervention as of right are not met. Only in an unusual case does a court, in its

4 discretion, find reason to add additional parties to a lawsuit, given the attendant increase in

5 expenditure of the parties and the courts time and resources, particularly where, as here, the

6 existing parties can already effectively litigate the dispute. The Court should deny the Motion to

7 Intervene and allow the parties to proceed to resolution of Plaintiffs claims in an efficient and

8 expeditious manner.

9 II. BACKGROUND
10 In August 2017, Notices of Intent to Recall a Public Officer (Recall Notices) were filed

11 against Nevada State Senators Joyce Woodhouse (Democrat, District 5) and Nicole Cannizzaro

12 (Democrat, District 6).1 These recall efforts are an abuse of Nevadas recall laws in order to

13 upend the results of legitimate democratic elections in pursuit of partisan political advantage

14 allowing Republicans to regain control of the State Senate through a special recall election that is

15 certain to involve a smaller, wealthier, and whiter electorate. Despite their undisputed electoral

16 victories just a year ago in 2016, Senators Woodhouse and Cannizzaro now face the prospect of a

17 special recall election for no reason other than to replace the duly-elected Senators with other,

18 Republican, candidates.
19 The current recall efforts injection of extreme partisanship into Nevadas political process

20 comes at the expense of voters rights, particularly the rights of minority voters in Nevada Senate

21 Districts 5 and 6, under the First and Fourteenth Amendments, the Voting Rights Act (VRA),

22 and the Guarantee Clause in Article IV, Section 4 of the United States Constitution. Plaintiffs

23
1
24 Though a recall notice was also filed against Nevada State Senator Patricia Farley
(Independent, District 8) in August 2017, recall proponents submitted only 2,056 signatures out of
25 7,107 required by the statutory deadline, putting an end to any further progress in their efforts to
recall Senator Farley. Michael Scott Davidson, Effort to Recall Farley Fizzles Without Signatures,
26
LAS VEGAS REVIEW-JOURNAL, Nov. 9, 2017, https://www.reviewjournal.com/news/politics-and-
27 government/clark-county/effort-to-recall-farley-fizzles-without-signatures/ (last visited Nov. 13,
2017). Accordingly, allegations as to Senator Farley are no longer pertinent to this lawsuit.
28
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Plaintiffs Opposition to PILF Motion to Intervene
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1 therefore challenge Nevadas recall laws as applied to the current recall efforts in Nevada Senate

2 Districts 5 and 6 and seek declaratory and injunctive relief to prevent Defendants, the Nevada

3 Secretary of State and the Clark County Registrar of Voters, from holding recall elections or

4 otherwise implementing or enforcing Nevadas recall laws in connection with the current recall

5 efforts in Districts 5 and 6.

6 PILF, an Indianapolis, Indiana-based 501(c)(3) nonprofit legal organization, seeks to

7 intervene in this case. According to PILFs website, it exists to assist states and others to aid the

8 cause of election integrity and fight against lawlessness in American elections. See Public Interest

9 Legal Foundation, About Us, https://publicinterestlegal.org/about-us/ (last visited Nov. 13, 2017).

10 PILF, however, alleges no any activity or expenditure of resources in Nevada generally, much less

11 in Nevada Senate Districts 5 and 6, or in relation to the Nevada recall laws at issue in this case.

12 Nor has PILF alleged or identified any actual members of its organization with a protectable

13 interest in Nevada, much less in Nevada Senate Districts 5 and 6, on whose behalf it seeks to

14 intervene.

15 Further, PILFs Motion to Intervene misconstrues Plaintiffs claims as a facial challenge

16 to Nevadas recall laws, and moreover, as a wholesale challenge to the power of a state to enact a

17 recall election procedure and the power of the people of Nevada to recall elected officials under

18 those procedures. (Motion to Intervene at 2; see also id. at 2-3 (incorrectly characterizing the case
19 as seeking to override the State of Nevadas prerogative to even hold an election at all and

20 extinguishing a means to hold government accountable)). This is plainly inaccurate and

21 mischaracterizes the nature and scope of the case. Instead, Plaintiffs challenge only the application

22 of Nevadas recall laws to the current recall efforts against Senators Woodhouse and Cannizzaro

23 in Nevada Senate Districts 5 and 6, for which no cause has been offered and which seek to force

24 an unjustified do-over of a legitimate, democratic election, held just a year ago, for purely political

25 ends and to further no public interest.

26 III. ARGUMENT
27 PILF has failed to establish that it is entitled to intervention as of right under Federal Rule

28 of Civil Procedure 24(a)(2) or permissive intervention under Federal Rule of Civil Procedure
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Plaintiffs Opposition to PILF Motion to Intervene
 Case 2:17-cv-02666-JCM-GWF Document 27 Filed 11/13/17 Page 5 of 14

1 24(b)(1)(B). Thus, the Court should deny the Motion to Intervene and allow the parties to proceed

2 to resolution of Plaintiffs claims in an efficient and expeditious manner, without injecting PILFs

3 efforts to broadly misconstrue the nature and scope of the claims at issue.2

4 A. PILF Is Not Entitled to Intervention as of Right

5 To intervene as of right under Federal Rule of Civil Procedure 24(a)(2), the movant must

6 claim an interest relating to the property or transaction that is the subject of the action, and [that

7 the movant] is so situated that disposing of the action may as a practical matter impair or impede

8 the movants ability to protect its interest, unless existing parties adequately represent that

9 interest. In the Ninth Circuit, a party seeking to intervene as of right under Rule 24(a)(2) must

10 meet four requirements: (1) the movant must timely move to intervene; (2) the movant must have

11 a significantly protectable interest relating to the property or transaction that is the subject of the

12 action; (3) the movant must be situated such that the disposition of the action may impair or

13 impede the party's ability to protect that interest; and (4) the applicants interest must not be

14 adequately represented by existing parties. Arakaki v. Cayetano, 324 F.3d 1078, 1083 (9th Cir.

15 2003), as amended (May 13, 2003). The party seeking to intervene bears the burden of showing

16 that all the requirements for intervention have been met. U.S. v. Alisal Water Corp., 370 F.3d

17 915, 919 (9th Cir. 2004) (citation omitted).

18 Here, PILF has failed to show that it has a significant and protectable interest in any
19

20
2
If PILF succeeds on its Motion to Intervene, however, the Court should determine that
21 PILF can be held liable for Plaintiffs attorneys fees and costs should Plaintiffs prevail on their
claims. See, e.g., Personhuballah v. Alcorn, 239 F. Supp. 3d 929, 944 (E.D. Va. 2017) ([W]here
22 unconstitutional laws rather than illegal practices are challenged [and] the initial defendant is often

23 the state[,] [p]lacing responsibility for intervention-related fees on intervenors rather than
defendants means that the burden of paying those fees will not fall on the taxpayers, but will
24 instead lie with the intervening party, who volunteered its resources to defend an unconstitutional
law); see also 52 U.S.C.A. 10310 (In any action or proceeding to enforce the voting
25 guarantees of the fourteenth or fifteenth amendment, the court, in its discretion, may allow the
prevailing party, other than the United States, a reasonable attorneys fee, reasonable expert fees,
26
and other reasonable litigation expenses as part of the costs.); Hensley v. Eckerhart, 461 U.S.
27 424, 429 (1983) (authorizing district courts to award a reasonable attorneys fee to prevailing
parties in civil rights litigation in regards to a 42 U.S.C. 1988 claim).
28
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Plaintiffs Opposition to PILF Motion to Intervene
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1 property or transaction that is the subject of this action. Nor has PILF shown that existing parties

2 would not adequately protect any such interest. Accordingly, PILF has failed to meet its burden

3 under Rule 24(a)(2) and is not entitled to intervention as of right.

4 1. PILF Has Failed to Establish a Significant or Protectable Interest in the

Subject of the Pending Action
5
To be sufficient for intervention, the interest claimed by the movant must be a
6
significantly protectable interest relating to . . . the subject of the action. Arakaki, 324 F.3d at
7
1083 (citing Donnelly v. Glickman, 159 F.3d 405, 409 (9th Cir. 1998)). Such a significantly
8
protectable interest can only be satisfied when the interest is protectable under some law, and . . .
9
there is a relationship between the legally protected interest and the claims at issue. Id. (citation
10
omitted). To satisfy the relationship requirement between the movants legally protected interest
11
and the claims in the pending action, the movant must show that the resolution of the plaintiffs
12
claims actually will affect the applicant. Id. at 1084 (quoting Donnelly, 159 F.3d at 410)
13
(emphasis added); see also Cal. ex rel. Lockyer v. U.S., 450 F.3d 436, 441 (9th Cir. 2006) ([A]
14
party has a sufficient interest for intervention purposes if it will suffer a practical impairment of its
15
interests as a result of the pending litigation.).
16
Here, PILF has failed to articulate any significant and protectable legal interest in this
17
litigation; instead, it makes insufficient vague and unsubstantiated allegations. In particular, PILF
18
argues that its broad charitable mission relating to election law and its strong interest in
19
defending the constitutional regularity of elections to ensure public confidence and encourage
20
democratic participation will be directly and adversely impacted by this case because this case
21
seeks to override the State of Nevadas prerogative to even hold an election at all.3 (Motion to
22
Intervene at 2, 5). Specifically, PILF insists the following mission will be impaired by this
23
litigation:
24

25
3
PILF completely mischaracterizes the nature and scope of this action. This case does not
26
seek[] to override the State of Nevadas prerogative to even hold an election at all. (Motion to
27 Intervene at 2, 5). Instead, the case challenges the scope of Nevadas recall laws in situations
where they are used only for purely political gain.
28
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Plaintiffs Opposition to PILF Motion to Intervene
 Case 2:17-cv-02666-JCM-GWF Document 27 Filed 11/13/17 Page 7 of 14

1 [Its] charitable mission includes working to protect the integrity of citizens votes
from dilution or abridgement, ensuring that voter qualification laws and election
2 administration procedures are followed, and providing assistance to states that seek
to enforce their constitutional mandate to determine the rules and laws pertaining to
3 their own state elections. The Foundation has sought to advance the interests of
maintaining state control over elections as it relates to ensuring that the
4 constitutional balance between a states power to control its own elections and
Congresss legitimate constitutional authority to protect against racial
5 discrimination through the Voting Rights Act is preserved.

6 Id. Putting aside the fact that PILF has not provided any evidence, in the form of sworn affidavits,

7 sworn declarations, or other documentary exhibits that any of the foregoing is true, PILFs interest

8 argument still fails. PILFs national interest in election-related issues generally is extremely broad

9 and, at best, only tenuously related to the pending actionand only because both PILFs alleged

10 interests and the subject matter of this action relate to elections. [A]n undifferentiated,

11 generalized interest in the outcome of an ongoing action is too porous a foundation on which to

12 premise intervention as of right. Southern Cal. Edison Co. v. Lynch, 307 F.3d 794, 803 (9th Cir.

13 2002) (quoting Public Serv. Co. of N.H. v. Patch, 136 F.3d 197, 205 (1st Cir.1998)).

14 PILF has also failed to identify any law under which its alleged interest is protectable.

15 (See Motion to Intervene at 5-6). Indeed, it is hard to fathom any applicable law protecting PILFs

16 broad interest in election integrity in this context, when PILF is located in Indiana and the action

17 it seeks to intervene in concerns two specific Nevada special recall elections.4 Nowhere has PILF

18 alleged, much less substantiated, any activity or expenditure of resources in Nevada generally,
19 much less in Nevada Senate Districts 5 and 6, or in relation to the Nevada recall laws at issue in

20 this case. Nor has PILF alleged or identified any actual members of its organization with a

21 protectable interest in Nevada, much less in Nevada Senate Districts 5 and 6, or anywhere, on

22 whose behalf it seeks to intervene. Moreover, accepting PILFs assertions and argument at face

23 value would lead to the absurd result that there is no lawsuit, anywhere in the country, relating in

24 any way to elections, in which PILF does not have a sufficiently significant and protectable

25

26
4
27 See Public Interest Legal Foundation, Contact, https://publicinterestlegal.org/contact/
(listing an Indianapolis, Indiana phone number and address) (last visited Nov. 13, 2017).
28
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Plaintiffs Opposition to PILF Motion to Intervene
 Case 2:17-cv-02666-JCM-GWF Document 27 Filed 11/13/17 Page 8 of 14

1 interest entitling it to intervention as of right. This cannot plausibly be the state of the law.5 When

2 an applicants purported interest is so tenuous, intervention is inappropriate. Donnelly, 159 F.3d

3 at 411; see also Benny v. England (In re Benny), 791 F.2d 712, 721 (9th Cir. 1986) (This

4 possibility that our decision could affect [the movants] interests is too tenuous to entitle them to

5 intervene of right.).

6 Having failed to establish a significant or protectable interest, PILF cannot establish that its

7 interests would be directly and immediately impaired or impeded by the disposition of this case.

8 See Forest Conservation Council v. U.S. Forest Service, 66 F.3d 1489, 1494 (9th Cir. 1995),

9 overruled in part on other grounds by 630 F.3d 1173 (9th Cir. 2011) (intervention requires that the

10 plaintiffs requested remedy have a direct, immediate, and harmful effect on the movants

11 legally protectable interest). The circumstances here are distinguishable from cases in the Ninth

12 Circuit that have recognized that when a public interest group was directly involved in the

13 enactment of the law or in the administrative proceedings out of which the litigation arose, it has

14 a stronger claim to a significantly protectable interest in litigation challenging such laws or

15 concerning the prior proceedings. See e.g. NW Forest Res. Council v. Glickman, 82 F.3d 825, 837

16 (9th Cir. 1996).6 Here, PILF has alleged no specific involvement or interest in Nevadas recall

17 election provisions and procedures, longstanding or otherwise.

18
19 5
PILF claims that because it was granted intervention in League of Women Voters of the
U.S. v. Newby, 195 F. Supp. 3d 80, 88 (D.D.C. 2016), revd on other grounds by 671 Fed. Appx.
20
820 (D.C. Cir. 2016), it should similarly be granted intervention here. However, the case is
21 distinguishable because PILFs motion to intervene in that case was unopposed. See id. Here,
Plaintiffs oppose PILFs intervention.
22 6
Citing Idaho Farm Bureau Fedn v. Babbitt, 58 F.3d 1392, 1397 (9th Cir. 1995)
23 (conservation group was active in getting species listed under Endangered Species Act, so it had
interest in litigation challenging listing); Yniguez v. Ariz., 939 F.2d 727 (9th Cir. 1991) (sponsor of
24 ballot initiative has sufficient interest in litigation challenging its constitutionality); Sagebrush
Rebellion, Inc. v. Watt, 713 F.2d 525 (9th Cir. 1983) (groups active participation in establishment
25 of wildlife sanctuary entitled it to intervene as of right in case challenging validity of sanctuary);
Wash. State Bldg. Consrt. Trades Council v. Spellman, 684 F.2d 627 (9th Cir. 1982) (public
26
interest group allowed to intervene in lawsuit challenging measure group had supported); Idaho v.
27 Freeman, 625 F.2d 886 (9th Cir. 1980) (group allowed to intervene in suit challenging validity of
provision organization actively supported).
28
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Plaintiffs Opposition to PILF Motion to Intervene
 Case 2:17-cv-02666-JCM-GWF Document 27 Filed 11/13/17 Page 9 of 14

1 Accordingly, PILF has failed to establish one of the essential requirements for intervention

2 of right under Rule 24(a)(2), and, for this reason alone, the Motion to Intervene should be denied.

3 2. PILF Has Failed to Establish that Existing Parties Will Not Adequately
Protect Its Interests
4
Courts in the Ninth Circuit consider three factors to determine whether a proposed
5
intervenors interest is adequately represented by an existing party: (1) whether the interest of an
6
existing party is such that it will undoubtedly make all of the proposed intervenors arguments; (2)
7
whether the present party is capable and willing to make such arguments; and (3) whether the
8
proposed intervenor would offer any necessary elements to the proceeding that other parties would
9
neglect. Arakaki, 324 F.3d at 1086 (citing Cal. v. Tahoe Regl Planning Agency, 792 F.2d 775,
10
778 (9th Cir. 1986)). The most important factor in determining the adequacy of representation is
11
how the [movants] interest compares with the interests of existing parties. Id. (citing 7C Wright,
12
Miller & Kane, 1909 at 318 (1986)). Thus, [w]hen an applicant for intervention and an existing
13
party have the same ultimate objective, a presumption of adequacy of representation arises and a
14
compelling showing should be required to demonstrate inadequate representation. Id. at 1086
15
(citing League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1305 (9th Cir. 1997)).
16
Even assuming arguendo that PILFs alleged interest in election issues is significant and
17
protectable, which it is not, PILF nonetheless fails to establish that its interest would not be
18
adequately protected by existing parties to this action. PILFs Motion to Intervene claims that the
19
existing Defendants are unlikely to assert certain affirmative defenses regarding the
20
constitutionality of the Voting Rights Act and are unlikely to raise all of the same factual
21
defenses as PILF. (Motion to Intervene at 6-7). For example, PILF speculates that the existing
22
Defendants will likely focus on preserving the status quo and maintaining the functioning of
23
Nevadas elections in accordance with Nevada law, while PILF will focus on the broader
24
constitutional implications. . . . because it, unlike the existing Defendants, is unrestrained by
25
political concerns. Id. However, PILF provides little support for such speculative assertions
26
regarding the defenses to be raised by the Defendants. Thus, these speculative assertions are
27
insufficient to meet PILFs burden. See Moosehead San. Dist. v. S.G. Phillips Corp., 610 F.2d 49,
28
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Plaintiffs Opposition to PILF Motion to Intervene
 Case 2:17-cv-02666-JCM-GWF Document 27 Filed 11/13/17 Page 10 of 14

1 54 (1st Cir. 1979) (a petitioner must produce something more than speculation as to the purported

2 inadequacy of representation of its interests by the existing governmental party).

3 Further, [w]hen an applicant for intervention and an existing party have the same ultimate

4 objective, a presumption of adequacy of representation arises and the movant must make a

5 compelling showing that the [existing Defendants] inadequately represents their interests. PEST

6 Comm. v. Miller, 648 F. Supp. 2d 1202, 1213 (D. Nev. 2009). Even assuming PILF has accurately

7 described potential differences in its strategy positions from those of the existing Defendants,

8 those differences do not rise to the level of a difference in objective. See League of United Latin

9 Am. Citizens v. Wilson, 131 F.3d 1297, 1306 (9th Cir. 1997) (When a proposed intervenor has not

10 alleged any substantive disagreement between it and the existing parties to the suit, and instead

11 has vested its claim for intervention entirely upon a disagreement over litigation strategy or legal

12 tactics, courts have been hesitant to accord the applicant full-party status.). Here, both the

13 existing Defendants and PILF share the same ultimate objective: to uphold Nevadas election

14 recall provisions against Plaintiffs as -applied challenge. Although their strategies may diverge in

15 some speculative respects at this point in time, their shared objective means that PILF is not

16 entitled to intervention simply because they may differ as to litigation strategy. See e.g. PEST

17 Comm., 648 F. Supp. 2d at 121314 (denying intervention because [t]here is simply no indication

18 from the record currently before the Court that the Secretarys and the Proposed Intervenors
19 interests are different).

20 Proposed intervenors generally face a heavy burden when seeking to intervene on the same

21 side as a state. There is an assumption of adequacy when the government is acting on behalf of a

22 constituency that it represents. Arakaki at 1086 (citing U.S. v. City of Los Angeles, 288 F.3d 391,

23 402 (9th Cir. 2002)). To defeat the presumption, a movant must make a very compelling showing

24 to the contrary. Id. (quoting 7C Wright, Miller & Kane, 1909 at 332) (emphasis added); see

25 also Lockyer v. U.S., 450 F.3d at 444 (emphasis added) (explaining that [i]n order to make a

26 very compelling showing of the governments inadequacy, the proposed intervenor must
27 demonstrate a likelihood that the government will abandon or concede a potentially meritorious

28 reading of the statute). Differences in litigation strategy, when the ultimate objective is shared,
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Plaintiffs Opposition to PILF Motion to Intervene
 Case 2:17-cv-02666-JCM-GWF Document 27 Filed 11/13/17 Page 11 of 14

1 do not normally justify intervention. Id. at 1086 (citing City of Los Angeles at 402). In addition

2 to the presumption of adequate representation by the government generally, the Ninth Circuit

3 denies intervention when a state is defending the constitutionality of its laws. See Lockyer, 450

4 F.3d at 444 (Arguably, [a strong presumption of adequacy] is nowhere more applicable than in a

5 case where the Department of Justice deploys its formidable resources to defend the

6 constitutionality of a congressional enactment.). Here, PILFs speculative assertions regarding

7 the future litigation strategy of Defendants, absent any explanation or substantiation, do not come

8 close to overcoming this strong presumption of adequate representation that applies when the

9 government is defending the constitutionality of its laws.

10 The Ninth Circuit has also rejected intervention when a movants alleged interests were

11 much broader than the governments interest, in contrast to when the movants interests were more

12 narrowly defined than those of the government and thus more likely to lack adequate

13 representation by the government. Arakaki, 324 F.3d at 108788 (quoting SW Ctr. for Biological

14 Diversity v. Berg, 268 F.3d 810, 823 (9th Cir. 2001)) (the Citys range of considerations in

15 development is broader than the profit-motives animating [intervening] developers); Californians

16 for Safe Dump Truck Transp. v. Mendonca, 152 F.3d 1184, 1190 (9th Cir. 1998) (the intervenors

17 interest were potentially more narrow and parochial than the interests of the public at large)).

18 Here, like in Arakaki, PILFs alleged interest is broader than the existing Defendants interests in
19 upholding Nevada law from federal Constitutional attack.

20 Because PILF has failed to demonstrate that its interests in this litigation are sufficiently

21 significant and protectable, and because it has failed to meet its burden to show that the existing

22 Defendants will not adequately represent its interests, this Court should deny PILFs request for

23 intervention as of right.

24 B. PILF Is Not Entitled To Permissive Intervention

25 Federal Rule of Civil Procedure 24(b)(1)(B) grants the district court discretion to allow a

26 party to intervene upon submission of a timely motion and if the party has a claim or defense that
27 shares with the main action a common question of law or fact. A movant who seeks permissive

28 intervention must prove that it meets three threshold requirements: (1) it shares a common
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Plaintiffs Opposition to PILF Motion to Intervene
 Case 2:17-cv-02666-JCM-GWF Document 27 Filed 11/13/17 Page 12 of 14

1 question of law or fact with the main action; (2) its motion is timely; and (3) the court has an

2 independent basis for jurisdiction over the applicants claims. Donnelly, 159 F.3d at 412. Even

3 if the applicant satisfies the threshold requirements, however, courts retain authority and discretion

4 to deny permissive intervention. Id. In exercising its discretion to consider permissive

5 intervention, the court should consider whether intervention will unduly delay or prejudice the

6 original parties, whether the applicants interests are adequately represented by existing parties,

7 and whether judicial economy favors intervention. PEST Committee, 648 F. Supp. 2d at 1214

8 (citing Venegas v. Skaggs, 867 F.2d 527, 53031 (9th Cir. 1989)).

9 Here, the Court should not grant PILFs request to intervene herein because its alleged

10 interests are adequately represented by existing parties and intervention will likely cause delay and

11 undue prejudice.

12 1. PILFs Interests Are Adequately Represented

13 Permissive intervention, like intervention of right, should be denied when the proposed

14 intervenors interests are adequately represented by existing parties. PEST Committee, 648 F.

15 Supp. 2d at 1214; Venegas, 867 F.2d at 530 (quoting State of Cal. v. Tahoe Regional Planning

16 Agency, 792 F.2d 775, 779 (9th Cir. 1986)) ([A] court in deciding whether to permit intervention

17 should evaluate whether the movants interests are adequately represented by existing parties.).

18 As set forth in detail above, PILF has not shown that the current Defendants will not adequately
19 represent its interests. To the contrary, because the Nevada Attorney General will be representing

20 an existing party in defense of the constitutionality of Nevada law, it is presumed that PILFs

21 interests in that identical objective are adequately represented. PILF has not carried its burden of

22 overcoming this presumption. Therefore, this Court should deny PILFs request for permissive

23 intervention.

24 2. Intervention Will Cause Undue Delay and Prejudice

25 Even if threshold requirements were met, courts may deny permissive intervention if there

26 is possible prejudice to the original parties to the litigation and if judicial economy will not be
27 served by permitting the requested intervention. See Moores Fed. Practice, 3d Ed., Sec. 24.10(1)

28 (2003). Because the Nevada Attorney Generals office adequately represents the general interests
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Plaintiffs Opposition to PILF Motion to Intervene
 Case 2:17-cv-02666-JCM-GWF Document 27 Filed 11/13/17 Page 13 of 14

1 of PILF in this action, PILFs intervention and participation will serve no purpose other than to

2 raise extraneous issues that will increase the workload and costs for the Plaintiffs and the Court,

3 potentially prejudicing Plaintiffs and delaying resolution of this litigation. Because PILFs

4 intervention would adversely impact judicial economy and unduly delay this litigation, its request

5 should be denied. See PEST Comm., 648 F. Supp. 2d at 1214 (denying permissive intervention

6 where adding intervenors as parties would unnecessarily encumber the litigation).

7 IV. CONCLUSION
8 Because PILF has failed to meet its burden of showing that it is entitled to intervention as

9 of right or that it should be granted permissive intervention, the Court should deny the Motion to

10 Intervene.

11 Respectfully Submitted:

12 November 13, 2017 WOLF RIFKIN SHAPIRO

SCHULMAN & RABKIN, LLP
13

14 By: /s/ Bradley S. Schrager

15 Bradley Schrager, Esq.
Daniel Bravo, Esq.
16 3556 East Russell Road, Second Floor
Las Vegas, Nevada 89120
17
Marc E. Elias, Esq. (pro hac vice)
18 Jacki L. Anderson, Esq. (pro hac vice)
19 PERKINS COIE LLP
700 Thirteenth Street, N.W., Suite 600
20 Washington, D.C. 20005-3960

21 Sambo Dul, Esq.

(pro hac vice to be submitted))
22 PERKINS COIE LLP
23 2901 N. Central Avenue, Suite 2000
Phoenix, Arizona 85012
24
Attorneys for Plaintiffs Nora Luna, Bilal
25 Shabazz, Diane Crump-Richmond, Susan
Florian, and Demi Falcon
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Plaintiffs Opposition to PILF Motion to Intervene
 Case 2:17-cv-02666-JCM-GWF Document 27 Filed 11/13/17 Page 14 of 14

1 CERTIFICATE OF SERVICE
2 I hereby certify that on this 13th day of November, 2017 a true and correct copy of

3 PLAINTIFFS OPPOSITION TO MOTION TO INTERVENE AS DEFENDANT BY

4 PUBLIC INTEREST LEGAL FOUNDATION was served via the United States District Court

5 CM/ECF system on all parties or persons requiring notice, and having access to the electronic

6 filing system referenced.

8 By: /s/ Christie Rehfeld

Christie Rehfeld, an Employee of
9 WOLF, RIFKIN, SHAPIRO, SCHULMAN &
RABKIN, LLP
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Plaintiffs Opposition to PILF Motion to Intervene